MSHA Part 100 Overview Arkansas Mine Safety & Health Conference February 2008

1. MSHA Part 100 Overview Arkansas Mine Safety & Health Conference February 2008

2. MSHA Part 100 Overview • Reformulates the process of assigning points to arrive at an assessment. • Adds a provision to an operator’s history addressing “repeat violations”. • Eliminates the $60 single penalty assessment for “non-S&S violations”. • Increases the dollar amount of each point in the conversion tables. • Maximum $60,000 for civil penalty (no change) • Minimum of $2000 and $4000 for Unwarrantable failure and Withdrawal orders respectively. • Failure to notify MSHA within 15 minutes of a fatality or injury that has reasonable potential to be a fatality from $5,000 to $60,000. • Makes all violations subject to “special assessment.”

3. MSHA Part 100 • MSHA new “Miner Act” Part 100 provisions and assessments • Graduated assessment scale for citations based on: • Size of operation (hours worked) • Size of controlling entity (hours worked) • Degree of Negligence • Gravity (severity, likelihood of event, # persons potentially affected) • Citation History • History of repeat violations

4. MSHA Part 100 Size of Operation Annual Hours Worked Penalty Pts. Size of Individual Mine O to 5,000 0 Over 5,000 to 10,000 1 Over 50,000 to 100,000 5 Over 100,000 to 200,000 6 Over 200,000 to 300,000 7 Over 300,000 to 500,000 8 Over 500,000 to 700,000 9 Size of Controlling Entity Over 3,000,000 to 5,000,000 8

5. MSHA Part 100 DEGREE OF NEGLIGENCE PENALTY POINTS Points • No negligence 0 • Low Negligence 10 • Moderate Negligence 20 • High Negligence 35 • Reckless Disregard 50 Increase from 25 to 50 maximum penalty points

6. MSHA Part 100 GRAVITY PENALTY POINTS Likelihood of Occurrence Points • No Likelihood 0 • Unlikely 10 • Reasonably Likely 30 • Highly Likely 40 • Occurred 50 Severity Points • No Lost work Days 0 • Lost or Restricted 5 • Permanently Disabling 10 • Fatal 20 Number of Persons Affected Points • 0 0 • 1 1 • 5 5 • 10 or more 18

7. MSHA Part 100 VIOLATION HISTORY PENALTY POINTS VPID= # assessed violations (15 mos.) Divided by Total inspection days (15 Mos.) • Penalty not used for mines with less than 10 citations for the 15 month period. • Only assessed violations that have been paid or finally adjudicated • Inspection day = full or partial day at mine site per inspector. • Have the authority to take past violations into consideration, (prior to promulgation) but will pay close attention to retroactive circumstances that result in unfair penalty increases. • Using 2005 data average penalty points for M/NM was 7.6 points. • Maximum of 25 penalty points versus 20 points old rule.

8. MSHA Part 100 REPEAT VIOLATION PENALTY POINTS (New) RPID= Repeat Violations Per Inspection Day • Violation of the same standard • Penalty not used for mines with less than 6 repeat citations for the 15 month period. • Only assessed violations that have been paid or finally adjudicated • Inspection day = full or partial day at mine site. • Still no commitment retroactivity • Using 2005 data 698 of 10,227 mines had at least 6 violations or more • Maximum of 20 penalty points

9. MSHA Part 100 • Flagrant Violations may be assessed a maximum civil penalty of $220,000. • Flagrant Definition…. “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.”

10. PART 100 Examples • Elevated Platform Housekeeping Issue

11. MSHA Part 100 Example #1: Non S&S Equivalent Old Rule: $60 single penalty assessment New Rule: Size of operation (hours worked) 7 Size of controlling entity (hours worked) 8 Degree of Negligence (Low) 10 Gravity: Unlikely, LTA, 2 persons affected 10-5-2 Citation History 12 History of repeat violations 0 Total Points 57 points or $112* or $100 w/GFR *MSHA projects, under the final rule that 59% of all violations will receive the minimum penalty of $112 or $100 with good faith reduction. This compares with 72% of all citations that received the $60 single penalty assessment under the old rule.

12. MSHA Part 100 Example #2: S&SEquivalent New Rule: Size of operation (hours worked) 7 Size of controlling entity (hours worked) 8 Degree of Negligence (Moderate) 20 Gravity: Reas. likely, LTA, 2 persons affected 30-5-2 Citation History 12 History of repeat violations 0 Total Points 84 points or $764* *MSHA estimates M/NM cement facilities average penalty assessment is going to increase from $220 to $481; a 119% increase.

13. MSHA Part 100 Example #3: S&S High Negligence/Highly Likely/Fatal New Rule: Size of operation (hours worked) 7 Size of controlling entity (hours worked) 8 Degree of Negligence (High) 35 Gravity: Highly likely, Fatal, 5 persons affected 40-20-5 Citation History 12 History of repeat violations 0 Total Points 127 points or $23,825

14. MSHA Part 100 Penalty Conversion Table

15. MSHA Part 100 NEXT STEPS: • Thoroughly review all citations under New Part 100 rule • Know your facility History (track on an ongoing basis) • Management Training on proper conduct during MSHA Inspections • Opening and closing conferences • Accompanying Inspectors • What to say - What not to say • Questions to ask inspectors • Importance of good communications • Required records • Improved relationship building with District Offices • H&S • Operations • Improve Workplace Examination Program • Documentation • Follow up on deficiencies • Accountability

16. MSHA Part 100 Overview Questions?